McCambridge v Brennan – Bread makers in Supreme Court Appeal

Bread makers dispute – Supreme Court Appeal – Outcome

Stop copying your trademark

McCambrige Ltd. sold brown bread under its registered trademark for many years.

Joseph Brennan Bakeries sold white bread predominantly before focussing attention on the brown bread market in 2010. It designed, developed and launched a new pack of brown bread in early 2011 to compete with McCambridge’s brown bread.

McCambridge started proceedings against Joseph Brennan Bakeries to seek that is desist from confusing consumers, and stop passing off the new brown bread product as being similar to McCambridge’s offering.

Nearly 400 days after the bakers started proceedings, they obtained a final decision in the courts. After the case was heard in the High Court of Ireland and passed to the Supreme Court an appeal by Brennans was rejected with the court ruling in favour of McCambridge that the High Court judgement was valid. The Supreme Court issued a majority judgement and a dissenting minority view in the bread bakers case.

Supreme court agreed branding & packaging confused consumers

The Supreme court agreed that consumers could be confused by the packaging of the two rival products.

The evidence before the High Court showed that, in assessing whether the product is likely to mislead the public, or whether there is confusion, the manner of presentation of that product is an important issue.

Trade mark law doesn’t allow you to misrepresent goods

To cause damage to a competitor’s goodwill

The Supreme Court said “it is sufficient that a defendant represents its goods in such a way that it is a reasonably foreseesable consequence that the claimant’s business or goodwill will be damaged. As outlined earlier, proof of intention to deceive is not required. A claimant may prove misrepresentation by calling evidence that the relevant public were in fact confused, but may also succeed in a case where there is no such evidence. The overall impact of the get up is the litmus test, as well as the length of time the conduct complained of has gone on. It will not be an answer to a complaint of misrepresentation to contend that an observant person who made a careful examination, or who compared both products side by side would not be misled. The test is, rather, the impression likely to be produced, on the likely customer, taking into account customer perception and imperfect recollection.”

Similarities in branding, shape & appearance

Can confuse consumers

According to the judge in the initial High Court case, the McCambridge complaint was “that whatever may be the actual distinctions, on a close examination between the appearance of the new Brennans bag and the established McCambridge bag, even though it is accepted by McCambridge that it has no proprietary right to the style of resealable bag, the shape and colour, or ingredients of the bread, nevertheless its shape and overall appearance or get up as it is referred to, particularly when placed beside or near the McCambridge product on the shop shelf is so similar in overall appearance that the ordinary member of the public who wishes to buy the McCambridge product may easily in error pick up and purchase the Brennan product.”

The Supreme Court agreed, by majority, that McCambridge was able to show the case met the “triple test” in relation to passing off, and therefore should succeed in its claims. A dissenting minority judgement was issued by one of the judges, which was over-ruled by the majority. [First published Aug 2012]. More court action on what Brennans should pay – see What’s Stoping Them Copying You.